State v. Ballard, 53368
| Decision Date | 20 August 1973 |
| Docket Number | No. 53368,53368 |
| Parties | STATE of Louisiana, Appellee, v. Clarence BALLARD, Appellant. |
| Court | Louisiana Supreme Court |
Paul Henry Kidd, Stephen J. Katz, Monroe, for appellant.
William J. Guste, Jr., atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Nathan E. Wilson, Asst. Dist. Atty., for appellee.
The trial court refused to allow the defendant Ballard to withdraw his plea of guilty. This refusal presents the sole ground of this appeal.
The defendant was originally indicted for murder. La.R.S. 14:30. He pleaded not guilty. On the day the case was set for trial, he pleaded guilty to manslaughter, La.R.S. 14:31, with the assistance of his then-retained counsel.
Before accepting Ballard's plea of guilty, the trial court thoroughly examined him as to the constitutional rights he was waiving by his plea. The trial court also examined the accused as to the facts upon which his plea of manslaughter was based.
These facts, as a contemporaneously recorded colloquy indicates, were that the decedent had stolen Ballard's wallet and was running away when the defendant Ballard shot and killed him. The defendant explained to the judge:
The trial court had reviously informed the defendant that manslaughter is 'when you kill a human being, and it would be murder, except that you are provoked to a point where you were in a sudden passion or heat of blood, anger.' Before accepting the plea, the trial court twice asked the defendant if he understood what manslaughter was and also if he understood that he could be sentenced up to twenty-one years' imprisonment. The defendant in each instance responded affirmatively.
Within a few days after the defendant pleaded guilty, he retained other counsel and filed a motion to withdraw his plea on the ground that he was not guilty of the crime and that he had entered the plea 'through ignorance and intimidation'.
At the hearing on the motion to withdraw his plea, the defendant Ballard and his wife testified. (His formerly retained counsel was in the court and was sequestered; but he was not called to testify either by the state or by the defendant.)
The defendant and his wife testified that, on the morning of the trial date, the then-retained counsel told Ballard he would have to plead guilty, that his parole for a conviction of a prior offense would be revoked and that he would return to the penitentiary anyway. According to these witnesses, the counsel indicated that Ballard's witnesses had not been questioned or subpoenaed and that a defense had not been prepared for the trial scheduled for that morning.
In refusing to permit the defendant Ballard to withdraw his plea, the trial court relied upon the colloquy at the time of the plea as indicating Ballard's full understanding of its consequences as showing that he had intelligently pleaded guilty to manslaughter in order to avoid going to trial for murder.
The defendant was sentenced to serve the maximum of twenty-one years for the charge. Further, this sentence was ordered to run consecutive to a 1963 life sentence for murder, from which the accused had been on parole for several years prior to the present 1972 killing. The parole was to be revoked because of the present plea. The defendant was 52 years of age at the time of the plea.
Under La.C.Cr.P. Art. 559: 'The court may permit a plea of guilty to be withdrawn at any time before sentence.' The granting of permission to withdraw a plea of guilty prior to sentencing rests in the sound discretion of the trial judge. State v. Johnson, 260 La. 902, 257 So.2d 654 (1972).
The defendant argues, with considerable justification, that under the circumstances the trial court abused its discretion in refusing to permit him to withdraw his plea. In so arguing the defendant relies upon the following circumstances:
(1) The defendant had a non-frivolous defense to the charge of mansaughter, i.e., that he had been robbed by a man with a knife and had killed the robber in an...
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